IP Law Daily, PATENT NEWS: Supreme Court asked to clarify if Federal Circuit may override a party’s deliberate waiver of non-jurisdictional issues, (Jan 15, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The complaint alleges that without the Supreme Court’s intervention, the Federal Circuit’s decision will embolden improper and misguided sua sponte claim constructions.

In a petition for certiorari, Comcast has asked the U.S. Supreme Court to clarify whether a court of appeals may override a party’s deliberate waiver of non-jurisdictional issues or must instead respect party presentation is of obvious legal and practical significance. At the heart of the petition is a deep and entrenched circuit split over whether they may address deliberately waived non-jurisdictional issues (Comcast Cable Communications, LLC v. WhereverTV, Inc., No. 25-820 (U.S. filed Jan. 8, 2026)).

Comcast Cable Communications, LLC is one of the nation’s largest providers of broadband, wireless, video, and voice services. Under the Xfinity banner, Comcast’s X1 entertainment system provides users with a cloud-based interactive program guide that allows them to access and watch media made available by Comcast.

WhereverTV, Inc. is a largely defunct television company that owns U.S. Patent No. 8,656,431 (the ’431 Patent), titled “Global Interactive Program Guide Application and Device,” which was issued by the USPTO in 2014. The ’431 Patent discloses a system and device that employs a global interactive program guide to receive, access, manage, and view digital entertainment services such as live television, television on demand, and pre-recorded video and audio programming from one or more content sources, via an internet-enabled device, anywhere in the world. Aiming to free customers from a “content middleman,” like Comcast, “who limits or controls what content is available,” WhereverTV’s patented device allows users to “add, delete programming channels in ‘real-time’ that might not be available through subscribed to” cable companies.

In 2018, WhereverTV sued Comcast for patent infringement. Following a Markman hearing, the court held a six-day jury trial in April 2023. At the close of WhereverTV’s case, Comcast moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The court granted the motion, agreeing that no reasonable jury could find direct infringement of the “adding or deleting channels” or the “interactive program guide application installed on the device” limitations.

On appeal to the Federal Circuit, WhereverTV challenged only the district court’s determination that the evidence did not suffice to show that Comcast’s X1 system infringed the two limitations as written. WhereverTV stressed that it never sought claim construction of either limitation and argued that the district court erred by improperly engaging in claim construction. Comcast agreed with WhereverTV that the sole question presented to the court of appeals was whether the evidence sufficed to prove infringement applying the plain text of the relevant limitations without further construction. The Federal Circuit vacated and remanded.

However, the Federal Circuit did not address the issue presented by the parties: Whether the evidence sufficed to show infringement of the patent as written. Nor did the Federal Circuit accept WhereverTV’s argument that the district court erred by engaging in claim construction in its judgment as a matter of law decision. Instead, the Federal Circuit addressed an issue neither party raised or briefed and that WhereverTV had repeatedly argued against—whether claim construction was needed and held that “the district court legally erred by not construing the limitations.” Thus, the Federal Circuit revived the case by deciding on an issue that WhereverTV had waived. Therefore, Comcast petitioned the Supreme Court for a writ of certiorari to review the Federal Circuit’s drastic departure from the party presentation principle.

Comcast argued that the Federal Circuit went on to decide the waived issue itself. Additionally, had the Federal Circuit applied the plain language of WhereverTV’s patent as both parties urged it would have had no choice but to affirm the district court. As the district court correctly recognized, the evidence showed that Comcast’s X1 system prohibited adding or deleting channels and lacked an interactive program guide application installed on the set-top box that provided an interactive program guide.

Comcast claimed that WhereverTV’s waiver was explicit, deliberate, and repeated. Thus, there can be no possible argument that this case involves inadvertent forfeiture. Comcast also contended that WhereverTV repeatedly disclaimed any need for construction of the disputed claim terms and insisted on proceeding with the claim’s plain language. The district court acknowledged and respected that waiver but the Federal Circuit did not. Thus, the Federal Circuit’s decision conflicts with the Supreme Court’s recent and repeated admonitions to courts of appeals directing them to respect rather than override party presentation.

Comcast argued that party’s decision to intentionally withdraw an issue from a court of appeals’ cognizance in turn should deprive the court of authority to address it. When a party deliberately waives an issue, they eliminate adversity with respect to that issue. Just as when parties seek voluntary dismissal, they consent to the judgment against them and disavow any right to relief on that ground. Comcast contended that it is particularly inappropriate for a court to substitute its view of the party’s best interests for the party’s own. There are many reasons why parties may waive winning issues, reasons which may be and often should be unknown to the court.

According to the petition, this case offers an ideal vehicle for addressing the entrenched and widely acknowledged circuit split over whether they may address deliberately waived non-jurisdictional issues The Third, Sixth, Tenth, and Eleventh Circuits hold that they lack authority to address deliberately waived issues. All of the remaining circuits hold that they may address waived issues—with two circuits, including the Federal Circuit, holding that their discretion to do so is unbounded, and the remaining seven holding that they may exercise discretion to address waived issues only in limited circumstances.

Comcast also argued that respect for a party’s deliberate waiver finds support in the history and constitutional structure of the American judicial system. A court of appeals’ sua sponte decision to override a party’s deliberate waiver may deny the parties adequate notice of the critical issue that the judge was actually debating. Respect for deliberate waiver also advances “other core values of the Anglo-American judicial tradition.”

The question presented by Comcast’s petition is, “Whether a court of appeals may override the principle of party presentation by deciding sua sponte a non-jurisdictional issue that a party deliberately waived.”

The Case is Dkt. No. 25-820.

Attorneys: Robert B. Niles-Weed (Weil, Gotshal & Manges LLP) for Comcast Cable Communications, LLC.

Companies: Comcast Cable Communications, LLC; WhereverTV, Inc.

News: Patent FedCirNews